State v. Burack, 91-74
| Decision Date | 07 October 1975 |
| Docket Number | No. 91-74,91-74 |
| Citation | 346 A.2d 192,133 Vt. 482 |
| Parties | STATE of Vermont v. Stephen J. BURACK. |
| Court | Vermont Supreme Court |
Robert W. Gagnon, State's Atty. and Gregory W. McNaughton, Deputy State's Atty., Washington County, Montpelier, for plaintiff.
John F. Nicholls, Office of Joseph C. Palmisano, Barre, for defendant.
Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.
A jury found the defendant guilty of operating a motor vehicle with a blood alcohol level in excess of .10 per cent, in violation of 23 V.S.A. § 1201. He attacks the conviction on an evidentiary issue.
His blood alcohol level was testified to be based on an analysis of his breath by a testing device known as a gas chromatograph. The breath sample was collected for testing by a device called a crimper, operated in this case by a state police officer.
The position of the defendant is that the results of the test should have been excluded because the prosecution failed to lay a proper foundation for its admission under standards set out in State v. Magoon, 128 Vt. 363, 264 A.2d 779 (1970). Those results, as testified to by the state chemist who made the analysis, showed a blood alcohol level of .14 per cent by weight.
The challenge raised by the defendant is specifically directed at the procedure for collecting the sample of breath to be tested. The collection is made by a mechanical device called a 'crimper', operated, in the usual case, by a law enforcement officer trained in the use of the machine. See State v. Mills, 133 Vt. 15, 328 A.2d 410 (1974).
There is a significant difference in the nature of the procedures in the use of the gas chromatograph and the photoelectric intoximeter, referred to in State v. Magoon, supra. In the Magoon case, the non-scientific, non-professional operator, by use of the intoximeter, performed the entire analysis of the breath sample. For obvious reasons, the full development of evidence concerning the proper order of the equipment, the qualifications of the operator, and the correctness of the procedures used was emphasized. These concerns are always appropriate with respect to testing apparatus, but are of especial emphasis in the absence of an operator whose scientific background embraces such analytical procedures.
The crimper with which this case is concerned is not the analyzing device, but merely collects the breath sample for transmission and later laboratory analysis. The crimper is not a testing machine, and the chromatograph is operated by the state chemist, not by a police officer. Even so, there is, of course, a responsibility to lay a proper foundation for the introduction of evidence relating to the collection of the sample by means...
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